Dominica V.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

2019001128 (E.E.O.C. Sep. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dominica V.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 2019001128

Agency No. ARDETRICK18JUL03024

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated September 20, 2018, dismissing her
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Advisory
Officer, DJ-0301-04, at the Agency’s Medical Material Development Activity in Fort Detrick,
Maryland.

Complainant stated that she was informed by the Commander that there was an EEO complaint
against her for hostile work environment. On July 16, 2018, the Commander informed
Complainant that the performance appraisal she issued for a subordinate employee (Subordinate)
was being challenged through a reconsideration procedure. The Commander wanted the
Subordinate moved from his current position “to the next level.” Subsequently, on August 30,
2018, Complainant learned that the Commander changed the Subordinate’s grade from a C to a
B rating after his appraisal was challenged under the reconsideration procedure.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On August 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (African-American), sex (female), and age (45) when:

1. On July 27, 2018, the Commander wanted the Subordinate moved from his
current position “to the next level.”

2. On August 30, 2018, Complainant learned that the Commander changed the
Subordinate’s grade from a C to a B rating after his appraisal was challenged
under the reconsideration procedure.

The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Agency indicated that Complainant failed to show that she was
directly or personally harmed by the alleged actions. As such, the Agency dismissed the
complaint.

CONTENTIONS ON APPEAL

Complainant appealed, asserting that she has been subjected to emotional distress and has sought
personal counseling. She asserted that she was the only supervisor at the Agency who has been
subject of an investigation and has had her employee’s rating changed. She believes that she has
been subjected to greater scrutiny. As such, she asked that the Commission reverse the Agency’s
dismissal. The Agency did not submit a statement or a brief in opposition to Complainant’s
appeal.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age,
disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The
Commission’s federal sector case precedent has long defined an “aggrieved employee” as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr.
21, 1994). Here, Complainant has alleged that she was subjected to discrimination when the
Commander changed the Subordinate’s assignment and performance rating. We note that the
alleged discriminatory actions alleged by Complainant were actions taken with respect to the
Subordinate.

Complainant’s own narrative indicated that the actions taken were pursuant to the Subordinate’s
internal appeal process and EEO complaint. Therefore, to the extent Complainant has asserted
challenges to actions taken against an internal investigation process and another employee’s EEO
complaint, we find that Complainant has alleged a collateral attack.
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The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No.
05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept.
22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The
proper forum for Complainant to have raised his challenges to actions which occurred during the
proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions which occurred during the internal appeal process.
Accordingly, we find that the Agency’s dismissal of the complaint pursuant to 29 C.F.R. §
1614.107(a)(1) was appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.2

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.

2 The Agency is reminded that under 29 C.F.R. 1614.403(e) it must submit the complaint file to
the Commission within 30 days of initial notification that the complainant has filed an appeal. In
this case, the agency did not submit the file until July 19, 2019, approximately seven months
after the Commission’s notification of the appeal.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 4, 2019
Date